Citation Nr: 1515725
Decision Date: 04/13/15 Archive Date: 04/21/15
DOCKET NO. 10-35 695 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois
THE ISSUE
Entitlement to an effective date earlier than June 21, 2007, for a grant of special monthly compensation based on loss of use of the right hand, to include whether there was clear and unmistakable error in a rating decision in August 1955.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
J. H. Nilon, Counsel
INTRODUCTION
The Veteran served on active duty from February 1951 to July 1953.
This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that in relevant part granted special monthly compensation (SMC) based on loss of use of the right hand effective from June 21, 2007. In assigning that effective date, the rating decision found there had been no clear and unmistakable error (CUE) in an August 1955 rating decision that noted loss of use the right hand was not present.
In his Substantive Appeal the Veteran requested a Travel Board hearing at the RO before a Veterans Law Judge, and a hearing was duly scheduled in September 2014. However, the Veteran notified the Board through his representative that he desired to cancel the hearing and have his appeal forwarded to the Board. The Board accordingly deems the Veteran's hearing request to be withdrawn. See 38 C.F.R. § 20.704(e) (2014).
In March 2015, after the file was forwarded to the Board for appellate review, the Veteran's representative submitted a motion to have the Veteran's appeal advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2014) and 38 C.F.R. § 20.900(c) (2014). This motion was granted by the Board in April 2015.
FINDINGS OF FACT
1. An August 1955 rating decision found in relevant part that the Veteran did not have loss of use of the right hand; the Veteran was notified of that decision by letter shortly thereafter but did not appeal or submit material evidence within the appeal period. That decision is final.
2. The Veteran has not identified any specific error of law or fact in the August 1955 rating decision as regards loss of use of the right hand that compels a conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for such error.
3. The Veteran's present claim seeking entitlement to special monthly compensation for loss of use of the right hand was received by VA on June 21, 2007.
CONCLUSION OF LAW
That part of the August 1955 rating decision finding no loss of use of the right hand is not the product of clear and unmistakable error, and the requirements to establish entitlement to an effective date earlier than June 21, 2007 for grant of special monthly compensation for loss of use of the right hand have not otherwise been met. 38 U.S.C. Chapter 12A, Part I, Paragraph II (1954); 38 C.F.R. § 3.236 (1955); 38 U.S.C.A. § 5110(a) (West 2014); 38 C.F.R. § 3.400 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Veterans Claims Assistance Act
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2014).
VA's duties to notify and assist are not applicable to CUE claims. See Livesay v. Principi, 15 Vet. App. 165, 178-79 (2001) (en banc)
With respect to the issue of entitlement to earlier effective date other than CUE, this is a "downstream" claim resulting from a grant of the benefit originally claimed. Following receipt of the Veteran's Notice of Disagreement on this issue the RO issued the Veteran a letter in September 2008 that advised him of the elements required to establish entitlement to an earlier effective date, and the Veteran had ample opportunity to respond before the RO readjudicated the issue in July 2010.
In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009 (reversing prior cases law imposing a presumption of prejudice on any notice deficiency and clarifying that the burden of showing harmful or prejudicial error normally falls on the party attacking the agency's determination).
Concerning the duty to assist, the record reflects that service treatment records (STRs) and the available post-service medical evidence identified by the Veteran has been obtained. The Veteran has not identified any additional existing evidence that should be obtained before the appeal is adjudicated. As noted in the Introduction, the Veteran was scheduled to testify in a hearing before the Board but he cancelled the hearing and asked that the file be forwarded to the Board for appellate action.
Based on a review of the record, the Board finds that there is no indication that any additional evidence relevant to the issues to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the issues on appeal.
Evidence and Analysis
An August 1955 rating decision determined that loss of use of the right hand was not shown, but otherwise continued the 100 percent evaluation for right hemiplegia with loss of use of the right foot as residual of depressed, compound skull fracture. The Veteran was notified of the rating decision in a letter dated later that month. He did not appeal or submit relevant evidence within one year of that letter. Thus, the decision is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.156(b); 20.302, 20.1103 (2014); see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010).
A determination on a claim by the agency of original jurisdiction of which the claimant is properly notified is final if an appeal is not perfected. 38 U.S.C.A. § 7105 (West 2014). Previous determinations that are final and binding will be accepted as correct in the absence of CUE. However, if the evidence establishes CUE, the prior decision will be reversed and amended. A finding of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § 3.105(a).
In determining whether a prior determination involves CUE, the Court has established a three-prong test: (1) either the correct facts, as they were known
at the time, were not before the adjudicator (i.e., there must be more than simple disagreement on how the facts were weighed or evaluated), or the statutory or regulatory provisions extant at that time were not correctly applied; (2) the error must be "undebatable" and of the sort which, if it had not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994), citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc).
CUE is a very specific and rare kind of error. It is the kind of error in fact or law that, when called to the attention of later reviewers, compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Generally, the correct facts, as they were known at the time, were not before the RO, or the statutory and regulatory provisions extant at the time were incorrectly applied. Even when the premise of error is accepted,
if it is not absolutely clear that a different result would have ensued, the error complained of cannot be ipso facto clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993), citing Russell, 3 Vet. App. at 313-14. Further, VA's failure in the duty to assist cannot constitute CUE. See Cook v. Principi, 318 F.3d 1334, 1346 (Fed. Cir. 2003).
Currently, SMC for loss of the use of a hand is payable under the provisions of 38 U.S.C.A. § 1114(k) and 38 C.F.R. § 3.350(a). Loss of use of a hand will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of amputation below the elbow, with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc. of the hand could be equally well accomplished with prosthesis. Complete ankylosis of two or more major joints will constitute loss of use of the hand. 38 C.F.R. §§ 3.350(a)(2), 4.63 (2014).
However, as noted above, a determination of CUE must be based on the record and the law that existed at the time of the prior adjudication. Baldwin v. West, 13 Vet. App. 1 (1999); Fugo, 6 Vet. App. 40. The law in August 1955 in regard to SMC refers to the anatomical loss or loss of use of one extremity at a level or with complications preventing natural elbow action with prosthesis in place. 38 U.S.C. Chapter 12A, Part I, paragraph II(k) (1954); 38 C.F.R. § 3.236(2) (1955). "Loss of use" of a hand was defined in 1955 essentially the same as today. See Extension 3, Schedule for Rating Disabilities, 1945 Edition (Jun. 17, 1948).
The Veteran asserts on appeal that he was shown to have no functional use of the hand at the time of his discharge from service in 1953, and that it was accordingly clearly and unmistakably erroneous of VA to have not granted special monthly compensation based on loss of use of the right hand when the claim was initially denied in August 1955.
Turning to the evidence that was of record in August 1955, immediately after discharge from service the Veteran entered a VA hospital for the purpose of convalescing from his in-service injuries that had resulted from being struck in the head by a flying piece of metal. In July 1953 a VA psychiatrist noted that the Veteran had begun to experience some restoration of overall function, but he remained unable to perform fine movements with the right hand such as to write or to pick up small objects. The Veteran could hold a glass or bottle only with difficulty.
The Veteran had a VA examination in September 1953 in which the examiner observed that fine movements of the right hand were not possible, in that the Veteran was unable to pick up small objects with that hand, to write or to perform other fine movements with his fingers. However, he was able to hold larger objects with that hand, such as a glass or a cup. The hand also showed loss of sensation, astereognosis and some uncontrollable ataxic movements. The examiner stated that the Veteran's course during hospitalization had shown slight improvement in strength of both affected right extremities. The examiner recommended that the Veteran continue his present course of therapy for a more definite evaluation.
In September 1953 the RO issued a rating decision that granted service connection and a 100 percent convalescent rating for hemiplegia as residual of a depressed skull fracture. The rating decision deferred action on the question of loss of use of the extremities pending reexamination after a 6 month convalescence as such was necessary before static residuals could be determined.
The Veteran had a VA orthopedic examination in November 1953. The examiner noted that motor power in the right upper extremity (RUE) was noticeably weaker than the left. There was atrophy of the interossei in the right hand and diminution in size of the thenar and hypothenar eminences. The Veteran was able to move his fingers only with difficulty and his main problem was lack of opposition of the thumb to any of the other four fingers (the ring finger overshot the thumb by 1.5 inches and the small finger missed the thumb by approximately 2 inches), but the Veteran was able to flex his four fingers to the mid-palmar crease. When asked to perform fine work with the right hand the Veteran was unable to pick up objects such as coins, keys, pens or pencils from a flat surface but he was able to perform more coarse work such as grasping the handle of a briefcase on the edge of a table or chair with relative ease, there being only a lack of coordination, and it took a bit more time for the Veteran to get a firm grip with the right hand compared to the left. The Veteran was able to hold a glass or bottle with the right hand, but only with difficulty. The examiner stated in summary that the Veteran's main problem seemed to be coordination, in that grabbing and releasing an object took him longer than would be expected normally. Flexion of the fingers seemed to be in fairly good order, with the exception of opposition and adequate flexion of the thumb, making finer movements of the hand quite impossible at the present time.
The Veteran had a special VA neurological examination in December 1953 in which the examiner noted the presence of astereognosis with objects placed in the Veteran's right hand; there was also past-pointing and ataxia in the finger-to-nose test. There was asynergia in motions involving the right hand and RUE in general. There was adiadokokinesis of the right hand and RUE. Muscle tone was more flaccid in the right extremities than the left. There was weakness in the RUE and falling-away of the outstretched RUE. Finger-to-nose test was done poorly with the RUE, with some gross ataxia. There were no involuntary movements. The Veteran was able to grasp objects strongly with the right hand but could not grasp or release objects quickly. All movements of the RUE were greatly impaired by lack of coordination. There was no sensory impairment. Reflexes were diminished on the right but there were no pathological reflexes. Physical medicine had reported the Veteran having complete function of the RUE pertaining to the shoulder, elbow, wrist and fingers with the exception of opposition of the thumb, lumbricals, partial impairment of dorsal and volar interossei; all movements could be carried out but were greatly impaired by lack of coordination; muscle power was good, and the Veteran could grip objects strongly but could not grip or release objects quickly.
In January 1954 the RO issued a rating decision that again deferred the question of loss of use for another six months, since further improvement of the RUE during convalescence was anticipated.
Following nearly a year of VA treatment the Veteran was discharged in June 1954. The discharge summary states during hospitalization the Veteran had fairly good return of strength of all the muscles in the RUE but continued to have considerable spasticity in the muscles of the right arm and hand, so that the Veteran would habitually hyperextend the fingers before grasping something, and it would take a moment for him to relax his grip with that hand. The Veteran denied excessive fatigue.
The Veteran had a VA special orthopedic examination in June 1955 in which he reported having not much use of the fingers of the right hand. The examiner observed the Veteran to use his left hand to undress. On examination, all fingers of the right hand extended to the normal range. On attempting to make a fist, the middle finger folded over the thenar eminence. The fingers were held in slight ulnar deviation but there was fairly good finger spread. There was spastic condition of the fingers and the Veteran was unable to approximate the tip of the thumb to the tips of the other fingers. When the fingers were in full extension the distal phalanx of the thumb was hyperextended. Right hand grip strength was only fair compared to the left. The examiner noted atrophy in the RUE. Movement of the shoulders, wrists and elbows was unrestricted.
The Veteran also had a VA neurological examination in June 1955. The examiner noted the presence of a spastic condition of the RUE in which the hand and fingers sometimes going into hyperextension, although when rubbed they would relax. The Veteran had a grasping reaction with the right hand, but was able to dress and undress himself and to get on and off the examination table without difficulty. However, the Veteran used the left upper extremity (LUE) for most of the fine movements, with the right hand assisting. Sensation was intact with the exception of desensibility with loss of position of the fingers of the right. The Veteran reported that because of his impairment of writing ability he had to switch to writing with his left hand, which had to some extent retarded his ability to take notes in his studies.
In August 1955 the RO issued the rating decision that the Veteran now challenges as containing CUE. The rating decision confirmed and continued the 100 percent rating with loss of use of the right foot, but found that loss of use of the right hand was not present.
On review of record that was before the RO in August 1955, the Board finds no CUE in the August 1955 rating decision. The medical evidence that was then of record shows the Veteran was able to flex and extend all fingers and to hold large objects and to grip, albeit more weakly with the right than with the left. In the June 1955 VA examination it was noted his right hand grip was fair. Thus, there was competent evidence of record to which reasonable minds could conclude that the Veteran had right hand function greater than that which would be accomplished by an amputation with prosthesis. Additionally, in his notice of disagreement in June 2008, the Veteran complained that the VA medical examinations on which the rating decision had relied were inadequate, and he asserted that any person with medical training would recognize that his disability was as acute in 1953 as it was in 2007. In essence, the Veteran's allegations regarding CUE amount to a disagreement with how the evidence was weighed. As noted above, such cannot constitute CUE. Fugo, 6 Vet. App. 40, 43-44. Moreover, to the extent his assertion is arguing that additional examination should have been conducted during the period prior to the August 1955 rating decision, such amounts to a breach in the duty to assist, which also cannot constitute CUE. See Cook, 318 F.3d 1334.
The Veteran has also asserted on appeal that loss of use was demonstrated in a Navy Medical Board hearing report dated in October 1957. However, evidence dated in 1957 cannot be used to show error in a rating decision that was issued two years earlier. As noted above, a finding of CUE must be based on the evidence of record at the time the challenged decision was rendered. See Fugo, supra.
In summary, the Veteran's allegations regarding CUE amount to a challenge to the weight assigned to the evidence of record at that time and/or a failure in the duty to assist. Reasonable minds can find that given the law extant at the time and the evidence then of record, the Veteran did not have loss of use of his right hand such that entitlement to special monthly compensation was warranted. Accordingly, the Board finds the decision was not clearly and unmistakably erroneous, and the claim is denied. 38 U.S.C.A. § 5109A (West 2014); 38 C.F.R. § 3.105(a).
Having found no CUE in the August 1955 rating decision, the Board will turn to the question of entitlement to an earlier effective date on a basis other than CUE.
Except as otherwise provided, the effective date of evaluation or award of compensation based on an original claim, a claim reopened after final disallowance or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. The effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability occurred, if application is received within one year from such date; otherwise, the effective date will be the date of VA receipt of the claim for increase, or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a), (b)(2) (West 2014); 38 C.F.R. § 3.400(o) (2014).
The Veteran's claim for SMC for loss of use of the hand was received by the RO on June 21, 2007. To support his appeal of the effective for the award of SMC for loss of use of the hand, he submitted a letter from Dr. DCL dated in October 2008 stating that he first saw the Veteran in 1981 for a left shoulder disorder but that he also had loss of use of the right upper extremity. He stated that Veteran's current level of RUE disability was the same as it had been in November 1981 with some additional atrophying of musculature. In August 2010 the Veteran submitted a Navy Medical Board hearing report dated in October 1957 (after his discharge from active duty), that he asserts demonstrates loss of use.
However, as these documents were not received until after the 2007 effective date, they cannot serve as a basis to award an earlier effective date. Indeed, the 2008 letter from Dr. DCL tends to establish that the loss of use of the hand had been shown since 1981, years prior to the 2007 date of claim.
The Court has held that 38 U.S.C.A. § 5110(b)(2) specifically links any effective date earlier than the date of application to: (1) evidence that an increase in disability had occurred; and (2) to the receipt of an application within one year after that increase in disability. Hazan v. Gober, 10 Vet. App. 511 (1997). The Court noted that 38 U.S.C.A. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2) are applicable only where the increase precedes the claim for increase, provided also that the claim for increase is received within one year after the increase. The Court further stated that the phrase "otherwise, the effective date shall be the date of receipt of the claim" provides the applicable effective date when a factually-ascertainable increase occurred more than one year prior to receipt of the claim for increase. Id.; see also Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010) (section 5110(b)(2) requires that "an increase in a veteran's service-connected disability must have occurred during the one year prior to the date of the veteran's claim in order to receive the benefit of an earlier effective date").
In summary, the Veteran's claim for SMC for loss of use of the right hand was not submitted until June 21, 2007, and the most probative evidence reflects the worsening occurred more than one year prior to the date of claim. Accordingly, it is the date of claim that controls, and an effective date earlier than June 21, 2007 is denied.
The "benefit of the doubt rule" is not applicable to CUE claims. 38 C.F.R. § 20.1411 (a) and (b). As regards entitlement to earlier effective date on a basis other than CUE, the preponderance of the evidence is against the Veteran's claim and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).
ORDER
The appeal to establish clear and unmistakable error in the August 1955 rating decision that denied loss of use of the hand is denied.
Entitlement to an effective date earlier than June 21, 2007, for a grant of special monthly compensation based on loss of use of the right hand is denied.
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K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs